Articles Posted inIndependent Contractors

On May 15, 2017, a new law will go into effect in New York City to protect “freelance workers,” which is broadly defined to include all independent contractors other than sales representatives (who already are protected by another NYC law), lawyers and doctors.

The Freelance Workers Protection Law will apply only to new contracts entered into after May 15, 2017. It applies if the hiring party is either an individual or a business, but does not apply to contracts with the state, federal, or local government.

Some of the law’s key provisions and requirements are described below.

A less-known New Jersey statute provides protection to independent commissioned salespeople after their contracts terminate. That law, the New Jersey Sales Representatives’ Rights Act, entitles independent contractors who work as sales representatives to be paid all commissions and any other compensation they earned within 30 days after their contracts terminated or 30 days after their commissions were due, whichever is later. This requirement applies irrespective of the reason why the contract terminated, including if the sales representative resigned, was terminated without cause, or was terminated with cause.

The statute, which originally was passed in 1990, defines a “sales representative” to be “an independent sales company or other person” who is compensated at least in part by commissions. It makes it clear its protection applies only to independent contractors, and does not apply to employees.

The statute further indicates that sales representatives also are entitled to receive commissions on goods that were ordered on or before the last day of the salesperson’s contract, even if the principal (meaning the business or individual who they worked for) did not accept, receive or pay for the goods until after the salesperson’s contract terminated. The principal must pay the salesperson for any such post-termination commissions within 30 days after the payment would have been due under the contract if it had remained in effect.

The United States Department of Labor recently released a formal Interpretation explaining how to determine whether a worker is an employee or an independent contractor under Fair Labor Standards Act (“FLSA”). The FLSA is a federal law which sets minimum wage and overtime pay requirements.

The Interpretation was written by David Weil, the Administrator of the DOL’s Wage and Hour Division. He explains that an increasing number of employers are misclassifying employees as independent contractors. As a result, many workers are unfairly denied minimum wage, overtime pay, unemployment insurance and other benefits.

As Mr. Weil indicates, the FLSA defines “employer” extremely broadly. It includes anyone the employer “suffers” or “permits” to work for it. Accordingly, “most workers are employees under the FLSA.”

The United States Court of Appeals for the Third Circuit recently ruled that the United States District Court for the District of New Jersey applied the wrong test to determine whether Sleepy’s LLC misclassified its delivery workers as independent contractors, rather than as employees. The case was decided under the New Jersey Wage Payment Law (“WPL”) and the New Jersey Wage and Hour Law (“WHL”).

The lawsuit was brought as a class action by Sam Hargrove, Andre Hall, and Marco Eusebio. They each worked for Sleep’s LLC as mattress delivery workers. They had signed Independent Driver Agreements (“IDAs”) which deemed them to be independent contractors rather than employees. Sleepy’s requires its delivery workers to sign similar agreements.

The workers claimed Sleepy’s misclassified them and the company’s other mattress delivery workers as independent contractors, rather than employees, in violation of the WPL, the WHL, the Family Medical Leave Act (“FMLA”) and the Employee Retirement and Income Security Act (“ERISA”). For example, they claim Sleepy’s improperly withheld money from their wages in violation of the WPL, and failed to pay them overtime as required by the WHL.

The question of whether you are an employee or an independent contractor can be very important. It can determine many issues, including how you will be taxed, whether you are entitled to health insurance and other employee benefits, and whether you are protected by various employment laws. However, the issue whether you have been misclassified as an independent contractor can be confusing because there are different tests under different laws.

Earlier this month, in Hargrove v. Sleepy’s, LLC, the New Jersey Supreme Court clarified which test applies under two important state laws: The New Jersey Wage and Hour Law (“NJWHL”) and the New Jersey Wage Payment Law (“NJWPL”). The NJWHL is a law that, among other things, entitles covered employees to be paid at least the minimum wage, and overtime at time-and-a-half when they work more than 40 hours in a week. Similarly, the NJWPL requires most employers to pay employees at least twice per month.

The case was filed in federal court. The Unites States District Court for the District of New Jersey applied a relatively narrow definition of “employee.” It concluded the plaintiffs were independent contractors, and therefore were not protected by the NJWHL or the NJWPL. Accordingly, it dismissed their case.

New Jersey’s Appellate Division recently analyzed whether three individuals were employees or independent contractors for purposes of the New Jersey Law Against Discrimination (LAD). The Court ruled that since there is a factual dispute whether they were employees or independent contracts, the question has to be answered by a jury. The issue is important since the court also concluded the LAD only protects employees, but not independent contractors, from hostile work environment sexual harassment cases. As discussed in a previous article, Sexual Harassment of Independent Contractor Can Violate New Jersey Law Against Discrimination when it results in the contractor losing her job because the LAD prohibits companies from refusing to contract with someone based on their sex.

The case involved three women, Janet Rowan, Kathleen Lownes, and Nancy Heidler, who worked for a group of companies owned by the same two individuals, Joseph Samost and Iva Samost. They alleged Joseph Samost created a sexually hostile work environment for them in violation of the LAD. The trial judge concluded the three women were independent contractors rather than employees, and as a result dismissed their claims.

However, last month in Rowan v. Hartford Plaza LTD., LP, New Jersey’s Appellate Division reversed that decision. It explained there are twelve factors to consider when deciding if someone is an employee or an independent contractor under the LAD. It found three of those factors, the employer’s right to control the worker’s performance, whether the work is supervised or unsupervised, and the level of skill required for the work, supported finding the women were employees since Joseph Samost supervised their work, and their jobs primarily involved unskilled clerical and office work such as filing faxing, copying, and making telephone calls. Similarly, it found another factor, whether the work is an integral part of the business of the company, was supported by the fact that the type of work they performed is necessary to any business. It also noted the fact that they were allowed to work from home did not suggest they were independent contractors since it is common for employees to work from home.

The appellate court found two additional factors, the length of time the individual has worked for the company and the way the work relationship ended, could support finding the women were employees since two of them were told they were fired due to a “restructuring” of the office rather than because of the completion of a particular job assignment. Similarly, it found two other factors, the method of payment and whether the company paid social security taxes were neutral, since the company paid the women “off the books” without issuing a W2 (which would have suggested they are employees) or a 1099 (which would have suggested they were independent contractors). Finally, the Court was unable to determine which position was supported by the last factor, the intent of the parties, since each side gave self-serving testimony in that regard.

As a result, the Appellate Division concluded that a jury has to decide whether the women were employees who are protected from hostile work environment sexual harassment, or independent contractors who are not.

The Second Circuit Court of Appeals recently ruled that employers can be held liable for discriminatory hiring decisions of independent contractors who are authorized to make hiring decision on the employer’s behalf. The Second Circuit is the federal appellate court that handles appeals from District Courts in New York, Connecticut and Vermont.

The case, Halpert v. Manhattan Apartments Inc., involves an individual, Michael Halpert, who applied for a job showing rental apartments for Manhattan Apartments. When he was seeking the job, Mr. Halpert was interviewed by Robert Brooks. According to Mr. Halpert, during the interview, Mr. Brooks told him he was “too old” for the position.

Mr. Halpert then sued Manhattan Apartments for age discrimination under the Age Discrimination in Employment Act (ADEA). The ADEA is a federal anti-discrimination law which prohibits employers from using age as a basis not to hire, to fire, or otherwise discriminate against employees.

On July 25, 2007, the New Jersey Supreme Court decided two employment law cases that clarified that the Conscientious Employee Protection Act (“CEPA”) applies to many individuals who have traditionally been considered independent contractors: D’Annunzio v. Prudential Insurance Company of America, 192 N.J. 110 (2007) and Stomel v. City of Camden, 192 N.J. 137 (2007). CEPA, which is often referred to as a whistleblower law, is a New Jersey statute that prohibits employers from retaliating against employees who object or refuse to participate in activities that they reasonably believe are illegal, fraudulent, criminal, or violate a clear mandate of New Jersey’s public policy relating to public health, safety or welfare.

In D’Annunzio, the New Jersey Supreme Court adopted a test that the Appellate Division established to determine whether an individual is an “employee” for purposes of another employment law statute, the New Jersey Law Against Discrimination. Those factors are: 1. the employer’s right to control the means and manner of the worker’s performance; 2. the kind of occupation-supervised or unsupervised; 3. skill; 4. who furnishes the equipment and workplace; 5. the length of time in which the individual has worked; 6. the method of payment; 7. the manner of termination of the work relationship; 8. whether there is annual leave; 9. whether the work is an integral part of the business of the “employer;” 10. whether the worker accrues retirement benefits; 11. whether the “employer” pays social security taxes; and 12. the intention of the parties.

D’Annunzio holds that Courts should primarily focus on three of those factors: 1. the degree of employer control; 2. the worker’s economic dependence on the relationship; and 3. whether the work is an integral part of the business. In its opinion, the Court notes that an individual is more likely to be considered an employee if he/she is a “cog” in the employer’s business, his/her work is continuously required by the employer’s business, his/her services are regularly at the employer’s disposal, or he/she performs routine or administrative activities.

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